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PETITIONER: JALAJA SHEDTHI & ORS.

       Vs.

RESPONDENT: LAKSHMI SHEDTHI & ORS.

DATE OF JUDGMENT20/09/1973

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN DWIVEDI, S.N.

CITATION:  1973 AIR 2658            1974 SCR  (1) 707  1973 SCC  (2) 773  CITATOR INFO :  E          1980 SC 198  (19,21,23)

ACT: Aliyasantana  Act  (Madras Act IX of 1949),  Sections  3(b), (i),  (ii), 3(c), 3(f), 3(h), 35, 36 and 39-Hindu  Secession Act,  XXX of 1956, sections 3(a), 4(1), 6, 7(2), 8, 10,  15, 17, 23 and 30-Meaning of ’Kavaru’, ’Kutumba’,   nissanthathi kavaru’, and ’Santhathi kavaru’ under Madras Act-Conceit  of inheritance is through female Partition-Share of a kavaru is ascertained on date  of  claim-Kavaru  in  relation  to  its undivided  interest is kavaru  undercus-tomary  Allyasantana law  or  Madras  Act-Succession Act does  not  enlarge  life interest  of  male  under  Aliyasantana  law  into  absolute interest.

HEADNOTE: Prior  to the Hindu Seccession Act, 1956, the  parties  were governed   by   the   Aliyasantana   law.    The   customary Aliyasantana  law was known by two different  names,  namely marumakattayam  and  aliyasantana which  literally  connotes inheritance  in  the  line  of  nephews’  or  sisters’  sons respectively.   The  basic principle  underlying  the  joint family composition, otherwise known as kutumba or tarwad, is the  matriarchal  system,  in which  devolution  is  through females.  A kutumba under the customary Aliyasantana law was a family corporation; every member, male or female, born  in it  has  equal rights in the property owned by it.   On  the death  of any member of the kutumba, his or her interest  in the  kutumba property devolved on the remaining  members  by survivorship.   Partition  could  be effected  only  at  the instance  of  all the adult members.  The  children  of  the female  members alone were the coparceners in  the  kutumba, but  not  the wife and children of the  male  members.   The Madras  Aliyasantana  Act,  1949,  defined  and  amended  in certain  respects the customary Aliyasantana  laws  relating to,  inter alia, intestate succession and partition  and  in other  respects saved the prevailing laws.  Thereafter,  the Hindu  Secession Act, 1956, came into operation whereby  the antecedent  Hindu  Law ceased to have effect to  the  extent that it was either provided for or was inconsistent with the Act.  The first appellant and the other appellants are the  widow

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and  sons respectively of C, while the first respondent  and the   other  respondents  are  C’s  sister  and   her   sons respectively.   C  executed  a  will  on  January  15,  1957 bequeathing  his interest in favour of the  appellants.   On January  25,  1957,  the respondents issued a  notice  to  C stating  that  he was the manager of the  undivided  family, that he was a missanthathi kavaru while the respondents were santhathi  kavaurs, as such there were only two kavarus  and that they had decided to divide the properties between C and themselves.  They, therefore, demanded under the Madras  Act a  share  belonging to their kavaru from out of  the  entire movable  and immovable properties of the family.  C  replied on  January 24, 1957, stating that the  respondents’  family was not a santhathi kavaru but a nissanthathi kavaru as  the first  respondent was mere than fifty years old on the  date of  the said notice and had no female issue.   He  admitted, however, that there are only two kavarus in the family,  and as  both the kavarus were nissanthathi kavarus, each  kavaru was entitled to a absolute share in the kutumba  properties. He  also  stated that he bad no objection to the  claim  for partition made by the respondents and was prepared to effect it provided the respondents cooperated.  C subsequently died on  February  13, 1957, after the coming into force  of  the Succession  Act.   On March 23 1957, the appellants  gave  a notice  to the respondents claiming a separate  share  under C’s will.  The respondents replied to the notice on the same day  denying  that  the appellants  had  any  share  because according  to  them C was entitled only to a  life  interest under the Aliyasantana law. The  appellants-plaintitfs  then filed a  suit  against  the respondents-defendants for    partition, separate possession of their 7/20th share of the suit Properties and for   mesne profits.   The  trial court decreed the suit  but  the  High Court dismissed.  In appeal by special leave to this  Court, the  questions  that  arose for  consideration  were  :  (i) whether  the rights of the parties, are to be determined  in accordance with the Aliyasantana law or under the Succession Act; (ii) what interest C had, 708 under the Madras Act, in the joint family properties on  the date  of  his  death; (iii) whether  a  partition  had  been effected;  (iv) whether C’s will is effective in respect  of his  share;  (v)  whether  he had a  life  interest  in  the properties; and (vi) whether, under the Succession Act. that interest  had been enlarged into an absolute interest  which could be bequeathed by a will. Dismissing the appeal, HELD : (i) From the definitions of ’kavaru’ [S. 3 (b) (i)  & (ii) ], ’Kutumba’ S. 3(c), ’Nissanthathi kavaru’ S. 3(f) and ’Santhathi  Kavaru  S.  3(h), under the Madras  Act,  it  is apparent  that the, basic concept of inheritance  through  a female has been maintained.  The presence of even one female in the kavaru will have the effect of continuing the kavaru, while the absence of a female would amount to the absence of progeny. [712D]  (ii)  Under  the provisions of Sections 35 and  36  of  the Madras  Act, any kavaru represented by the majority  of  its major  members can claim its share of all the properties  of the  kutumba over which the kutumba has power  of  disposal. It  may  thereafter  take its share and  separate  from  the kutumba  provided that where a kavaru consists of  only  two persons, such a claim can be made by either of them.  But no kavaru  can  make such a claim during the life time  of  any common  ancestress who is common to such kavaru and  to  any other kavaru or kavarus of the kutumba who has not completed

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50 years unless she has signified her consent in writing  or 2/3 of the major members of the kavaru have joined in making the claim for partition.  The common ancestress can  however on  her own volition claim a partition.  The share  obtained by  the kavaru on partition is with all the incidents  of  a kavaru  property which is divisible into certain  proportion for a period of 15 years from the commencement of that  Act, and  thereafter,  is divisible per stirpes and  each  kavaru gets  a  share on the basis.  The same position  applies  to every  kavaru possessing separate property as if it  were  a kutumba.   However,  u/s  36(3),  if  at  the  time  of  the partition any kavaru taking a share is a nissanthathi kavaru it would have only a life interest in the property  allotted to  it, if the kutumba from which it separated has at  least one family member who has not completed the age of 50  years or  where the kutumba broke up into a number of  kavarus  at partition,  if  at least one such kavaru  is  the  santhathi kavaru.  But if there is no such female member or  santhathi kavaru,  the  nissanthathi  kavaru would  have  an  absolute interest  in the properties allotted to it.  The  properties allotted  to  a nissanthithi kavaru at a  partition  and  in which  it had only a life interest at the time of the  death of  the  last of its members, devolves upon the  kutumba  or where  the  kutumba is broken up at the same or  at  a  sub- sequent partition into a number of kavarus, upon the nearest santhathi kavaru or kavarus. [713H] Gupte,  Hindu Law of Succession, 2nd edition, at  page  484, referred to. (iii)     The  provisions  of the Madras  Act,  particularly section   36(2)(h)  with  its  explanation   without   doubt indicates  the time when a share of a kavaru is  ascertained on  a  partition in the family and whether the  property  is divided by metes and bounds or not the share in the property has to be determined as on the date when the claim is  made. In the present case, the claim was made on January 22, 1957, and therefore, the share of the parties has to be determined as  on that date even though the physical partition  of  the properties  by  metes and bounds may take  place  some  time later. [715B] (iv) Under  the  provisions of the Succession  Act,  on  the demand  for  partition, there is a division in  status,  and though  partition  by metes and bounds may  not  have  taken place, that family can thereafter never be considered as  an undivided  family  nor can the interest of a  coparcener  be considered  to  be  an undivided interest.   It  is  a  well established  principle in the Hindu Law that a member  of  a joint Hindu family has a right to intimate his definite  and unambiguous  intention  to the other members  of  the  joint family  that  he will separate himself from the  family  and enjoy his share in severally.  Such an unequivocal intention communicated  to  the other will amount, to  a  division  in status and on such division, he will have a right to get the division of his specific share of the joint family  property in which till then all of them had an undivided  coparcenary interest, and in which none of them could claim that he  had any right 709 to  any specific part thereof.  Once the decision to  divide has  been unequivocally expressed and clearly  intimated  to his  co-sharers, whether or not the other co-sharers  agree, an  immediate severance of the joint status is effected  and his  right  to obtain and possess the share to which  he  is admittedly  entitled  becomes  specified.   This   principle enunciated  in  Girja Bai v. Sadashiv Dhundiraj  and  others L.R.  43  I.A.  151 and Appovier v.  Ramasubbier  [1866]  11

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M.I.A.  75  has  been enacted in section 36(2)  (h)  of  the Madras   Act   which  specifies  the  point  of   time   for ascertaining  the  share  when  a  division  in  status   is effected.  The term "partition" in sub-section (3) of s.  36 therefore,  must  be  given  the same  meaning  as  in  Sec. 36(2)(h)  of  the  Madras  Act.   If  so  on  a  demand  for partition,  a severance of status takes place and the  share to  which  each is entitled in the undivided  properties  is ascertained.   In the case of an Aliyasantana kutumba,  this Court,  in  Panduraja and others v. Dhanawanti  and  others, held  that  if  the  jointness  of  the  kutumba  had   been disrupted, there is no question on claiming any partition as there  is  no kutumba in existence as in the  present  case. Similarly,  on the same parity of reasoning, when there  are two kavarus, demand for partition would disrupt them  within the meaning of S. 7(2) of the Succession Act.  If he had  no undivided  interest in the property, his interest cannot  be enlarged  into  an  absolute estate  nor  can  his  interest devolve  upon his heirs by intestate succession.   Prior  to the  Succession  Act, neither under the  customary  law  nor under  the Madras Act, nor under the Indian Succession  Act, the  interest of a coparcener in an  Aliyanasantana  kutumba could  have  been disposed of by  testamentary  disposition. But  s. 30 of the Succession Act made a definite  change  in the  law by enabling a member of an  undivided  Aliyanasanta kutumba  or  of a kavaru to dispose of his interest  in  the kutumba or kavaru properties by a will. [717H] Karthiyayini Kunehi v. Minakshi Ammal [1935] M.L.F. 114  and Mahalinga  Sherty  v.  Jataja Shedthi and  others  [1956]  2 M.L.F. 446, approved. Padmaraja and others v. Dhanavanthi and Ors. [1972] 2 S.C.C. 100, 104, applied. Girja Bai v. Sadashiv Dhundiraj and others L.R. 43 I.A.  151 and  Appovier v. Ramasubbier [1866] 11 M.I.A.  75,  referred to. (v) In the present case, there is neither a kutumba nor  can C be a kavaru.  The two   kavarus  after  the  division   in status, became only one kavaru, viz. that of respondent  no. 1  (C’s sister).  C will not be a kavaru within the  meaning of S.     3(b) of the Madras Act because u/s 3(b)(ii), there being no female line, it is   only  C’s mother who can be  a kavaru  but  not C. In fact, a male can never  be  a  kavaru either  under  the customary law or under  the  Madras  Act. When  Sec.  7(2) of the Succession Act refers to  kavaru  in relation to its "undivided interest’, it is the kavaru under the customary law or the Madras Act and not a deemed  kavaru for  the purpose of partition.  If C is not a kavaru,  there is  no property of a kavaru, which can be disposed of  under sec.  30 of the Succession Act.  Even under the  explanation to that section, the life interest which C had on  severance of status is not property capable of being disposed of by  a will nor could it devolve by survivorship.  He is no  longer a kavaru and had, therefore, no interest in the property  of the kavaru.  C’s live interest is also not enlarged u/s 7(2) of  the Succession Act into an absolute interest, because  a male  with a life interest under the Aliyasantana law  being in  the  same position as a female limited owner  under  the Hindu  law, the Succession Act while enlarging the right  of the latter under sec. 14 into an absolute interest did  not specifically  provide for the enalrging of the right of  the former.  In the absence of any such specific provisions,  it must  be  held that C’s interest enured till his  life  time only. [721] Dundara  Adapa  and others v. Girija & Ors.   I.L.R.  [1962] Mysore 225, applied.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1258 of 1967. Appeal  by Special Leave from the Judgment and  Order  dated the 10th July 1963 of the Mysore High Court at Bangalore  in Second Appeal No. 345 of 1961. 710 S.   S.  Javali,  B.  P. Singh and B. R.  Agrawala  for  the appellants. K.   N.  Bhatt  and Saroja Gopalakrishnan,  for  respondents Nos. 1-3. The Judgment of the Court was delivered by JAGANMOHAN REDDY, J. The appellants who were the  plaintiffs filed  a  suit against the respondents  the  defendants  for partition, separate possession of their 7/20th share of suit properties  and for mesne profits.  The Trial Court  decreed the  suit, but the High Court dismissed it.  This appeal  is by special leave against that judgment. Prior to the Hindu Succession Act, XXX of 1956  (hereinafter referred  to  as  ’the  Succession  Act)  the  parties  were governed by the Aliyasantana Law and the question before  us is  whether their rights are to be determined in  accordance with  that  Law  or under the Succession  Act.   It  is  not disputed  that  Chandayya Shetty, who died on  February  13, 1957 after coming into force of the Succession Act, and  the first  respondent are brother and sister respectively.   The first  appellant is the widow and appellants 2 to 6 are  the sons- of Chandayya Shetty, while respondents 2 to 4 are  the sons  of the first respondent.  In order to  appreciate  the contentions, urged before us, it would be necessary to first set  out  certain underlying concepts  of  the  Aliyasantana customary  law,  the changes made by  the  Aliyasantana  Act (Madras  Act  IX of 1949)-hereinafter referred  to  as  "the Madras  Act" and the relevant provisions of  the  Succession Act.   The Aliyasantana Law is a part of the  customary  law which  governed  certain communities on the  West  Coast  of South  India.   The  basic principle  underlying  the  joint family  composition,  otherwise known as kutmba  or  tarwad, under  the  customary  law known by  two  different  names, namely,   marumakkattayvam   and   aliyasantana,   is    the matriarchal  system,  in  which the  devolution  is  through females.  The meaning of the two words by which the  systems are  known  literally connotes ’inheritance in the  line  of nephews’ or sisters’, sons.  Apart from a few differences in these  two  systems.  it  may  be  noticed  that  while  the marumakkattayam  system  was applicable to all  castes,  the aliyasantana system is’ not followed by the Brahmins (See P. R.  Sundra  Iyer’s Malabar and Aliyasantana Law,  1922  Edn. 247).  It is chiefly followed by the Bunts, the Bilwa  caste and the non-priestly class among the Jains (See Myne’s Hindu Law,   1950),   11th  Edn.  971).   A  kutumba   under   the Aliyasantana  customary law was a family corporation:  every member born in it has equal rights in the property owned  by it.   On the death of any member of the kutumba his  or  her interest  in  the  kutumba property devolved  on  the  other members of the kutumba by survivorship.  The limited  estate of  Hindu female familiar to the Mitakshara Law was  unknown to  this ,system, for under it every male and female  member had  equal rights in the kutumba property.  Under this  law, though  partition could not be enforced at the  instance  of on(-,  or more members and the members of the kutumba  would be  entitled  to maintenance. it could be  effected  at  the instance of all the adult members thereof.  It may, however,

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be  noticed  that  ’since  the  basis  of  the  system   was matriarchal, the children 711 of  the  female members alone were the  coparceners  in  the kutumba,  but  not  the wife and the children  of  the  mate members.  This customary law as applicable in certain  areas of  the Madras Province and in the erstwhile princely  State of Travancore and Cochin was modified by the laws enacted by the respective legislatures.  In this case we are  concerned with  the  Madras Ast which defined and amended  in  certain respects the laws relating. to marriage,       guardianship, maintenance,   intestate succession and partition applicable to  persons  governed by that customary law. In  respect  of matters  which  this  Act did  not  affect,  the  prevailing customary  law  was saved by s. 39 of the Madras  Act  which provided :                "Nothing  contained  in  this  Act  shall  be               deemed to affect any rule of Aliyasantana Law,               custom   or  usage,  except  to   the   extent               expressly laid down in this Act. " The Madras Act conferred a right to partition properties and the  mode  of ascertainment of shares  on  partition.  These provisions are dealt with in Ch. VI of that- Act. Before  examining the provisions of the Madras Act  and  the Succession Act it may be mentioned that Chandayya Shetty had executed a Will on January 15, 1958 bequeathing his interest in  favour  of the appellants ie. his wife and  children.  A week  thereafter on January 22, 1957, the  first  respondent and her children issued a notice to Chandayya Shetty stating that  he Chandayya Shetty) was the manager of the  undivided family, that he was a nissanthathi kavaru (branch) while the respondents were santhathi kavarus, as such there were  only two  kavarus  and  that  they  had  decided  to  divide  the properties  between Chandayya Shetty and  themselves.  They, therefore,  demanded under the Madras Act a share  belonging to their kavaru from out of the entire movable and immovable properties  of  the  family.  Chandiyya  Shetty  replied  on January 24, 1957, denying that the respondents’ family was a santhathi kavaru, but was a nissanthethi kavaru as the first respondent  was  more than 50 years old on the date  of  the said  notice and had no female issue. He, however,  admitted that  there are only two kavarus in the family, and as  both the kavarus were nissanthathi kavarus, each       kavaru was therefore entitled to an absolute share in the kutumba  pro- perties.  He  also stated that he had no  objection  to  the claim for partition made by the respondents and was prepared to effect it provided the respondents cooperated. After this reply  notice, Chandayya Shetty died, as already stated,  on February  13, 1957. On March 23, 1957, the  appellants  i.e. Chadayya Shetty’s widow and her children gave a        notice to the respondents claiming a separate share under the  Will of   Chandayya Shetty. A reply was given on the same day  by the  respondents denying that the appellants had  any  share because according to them Chandayya Shetty was entitled only to a life interest under the Aliyasantana Law.      On  these facts it may be necessary to ascertain  under the  provisions  of  the  Madras  Act  the  interest   which Chandayya  Shetty had in the joint family properties on  the date of his death, whether a partition had 712 been effected,..whether his will is effective in respect  of his share, whether he had a life interest in the properties, and whether under the provisions of the Succession Act  that interest  had been enlarged into an absolute interest  which could be bequeathed by a Will.

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Before examining the provisions of Ch.  VI of the Madras Act which  deal with partition, it will be useful to  ascertain, what under that Act is a ’kutumba’ and a ’kavaru’, and  what is  meant  by  a ’santliathi  kavaru’  and  a  ’nissanthathi kavaru’?   A  ’kavaru’ has been defined in S. 3 (b)  (i)  in relation  to  a  female as meaning  "the  group  of  persons consisting  of  that  female,  her  children  and  all   her descendants  in  the female line", and under S. 3  (b)  (ii) when  used in relation to a male as meaning "the  kavaru  of the  mother of that male".  Under s. 3(c)  ’kutuniba’  means "the group of persons forming a joint family with  community of   property   governed   by  the   Aliyasantana   Law   of inheritance".  Under s. 3 (f) ’nissanthathi kavaru’ has been defined  as  meaning  "a kavaru which  is  not  a  santhathi kavaru",  and  ’santhathi kavaru’ under S. 3  (h)  means  "a kavaru of which at least one member is a female who has  not completed  the  age of fifty years".  It  is  apparent  from these  definitions  that the basic  concept  of  inheritance through a female has been maintained under this Act in  that the presence of even one female in the kavaru will have  the effect of continuing the kavaru, and the absence of a female would amount to the absence of progeny a nissanthathi liable to  the  extinction of the branch.  Keeping  in  view  these definitions, s. 35, which provides for partition may now  be read               "35.  (1)  Any,  kavaru  represented  by   the               majority  of  its major members may  claim  to               take  its share of all the properties  of  the               kutumba  over which the kutumba has  power  of               disposal and separate from the kutumba:               "Provided that- .               (i)   where  a  kavaru consists  of  only  two               persons, such a claim may be made by either of               them;               (ii)  no kavaru shall make such a claim during               the lifetime of any ancestress common to  such               kavaru  and to any other kavaru or kavarus  of               the kutumba, who has not completed fifty years               of age,           unless-                (a)  she   has  signified  her   consent   in               writing, or               (b)   two-thirds  of the major members of  the               kavaru join in making the claim for partition;               (iii) the  common  ancestress may on  her  own               volition claim a partition.               (2)   The  share obtained by the kavaru  shall               be  taken  by  it with all  the  incidents  of               kutumba property.               Explanation.-For the purposes of this Chapter-               (a)   a male member of a kutumba, or a  female               member thereof who has no living descendant in               the  female  line,  shall be deemed  to  be  a               kavaru  if  he  or she has  no  living  female               ascendant who is a member of the kutumba;                713               (b)   such male member, or such female  member               if  she has completed the age of fifty  Years,               shall be deemed to be a nissanthathi kavaru." Under s. 36(1) any kavaru entitled to partition under s.  35 shall  be  allotted a share of, the  kutumba  properties  in accordance with the provisions of sub-s. (2), and the  share of  a  kavaru at a partition under sub-s. (2) (h)  shall  be ascertained  as  on the date on which it make  a  claim  for partition.  Explanation to that sub-section provides that :               "For  the  purposes of this  sub-section,  the

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             date on which a partition is claimed shall be-               (a)   where  the claim is made by a  suit  for               partition, the date of the institution of  the               suit (whether the suit is prosecuted or  not);               and               (b)   where  the claim is made otherwise  than               by  a  suit the date on which  such  claim  is               made." The following sub-sections (3) to (5) on which reliance  has been placed are also given below :               "(3)  If,  at the time of the  partition,  any               kavaru  taking  a  share  is  a   nissanthathi               kavaru, it shall have only a life interest  in               the properties allotted to it, if the  kutumba               from  which  it  separates has  at  least  one               female  member who has not completed the,  age               of fifty years, or where the kutumba breaks up               into a number of kavarus at the partition,  if               at  least one of such kavarus is  a  santhathi               kavaru  and if there is no such female  member               or santhathi kavaru, the kavaru shall have  an               absolute  interest in the properties  allotted               to it.               (4)   In  the case referred to in  sub-section               (3),  the  life interest of  the  nissanthathi               kavaru in the properties allotted to it at the               partition   shall  become  absolute,  if   the               kutumba  concerned  ceases to have  among  its               members a female who has not completed the age               of  fifty  years or if all  the  kavarus  into               which  the  kutumba broke up, whether  at  the               same  or  at a  subsequent  partition,  become               nissanthathi kavarus.               (5)   The    properties    allotted    to    a               nissanthathi  kavaru  at a  partition  and  in               which it had only a life interest at the  time               of the death of the last of its members, shall               devolve upon the kutumba, or where the kutumba               has broken up, at the same or at a  subsequent               partition, into a number of kavarus, upon  the               nearest santhathi kavaru or kavarus." The  position  that  emerges on  a  consideration  of  these provisions  is that, any kavaru represented by the  majority of  its  major  members  can claim  its  share  of  all  the properties  of the kutumba over which the kutumba has  power of disposal.  It may thereafter take its share and  separate from  the kutumba, provided that where a kavaru consists  of only  two  persons, such a claim can be. made by  either  of them 714 but no kavaru can make such a claim during the life-time  of any  common ancestress who is common to such kavaru  and  to any  other  kavaru or kavarus of the kutumba,  who  has  not completed  fifty years unless she has signified her  consent in writing or two-thirds of the major members of the  kavaru have  joined in making the claim for partition.  The  common ancestress   can  however  on  her  own  volition  claim   a partition.  The share obtained by the kavaru on partition is taken  with all the incidents of a kutumba property.   Under s. 36 of that Act the property of a kutumba is on  partition divisible  in a certain proportion for a period  of  fifteen years  from the commencement of that Act and thereafter  all the  property, is to be divided per stripes and each  kavaru gets  a  share  on  that  basis.   The  provision  is   also applicable  to every kavaru possessing separate property  as

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if it were a kutumba.  However, under sub-s. (3) of S. 36 of that Act if at the time of the partition any kavaru taking a share  is a nissanthathi kavaru it would have only  a  life- interest in the property allotted to it if the; kutumba from which  it separated has at least one female member  who  has not  completed the age of fifty years or where  the  kutumba broke  up into a number of kavarus at partition if at  least one  such kavaru is a santhathi kavaru.  But if there is  no such  female  member or santhathi  kavaru  the  nissanthathi kavaru  would  have an absolute interest in  the  properties allotted  to it.  Sub-section (4) of that  section  provides for circumstances under which the life-estate in a  ,divided share above referred to becomes absolute property’ and  sub- s. (5) of that section provides that the properties allotted to a nissanthathi kavaru at a partition and in which it  had only a life-interest at the time of the death of the last of its  members devolves upon the kutumba or where the  kutumba is broken up at the same or at a subsequent partition into a number  of  kavarus, upon the nearest  santhathi  kavaru  or kavarus.  See Gupte’s Hindu Law of Succession, 2nd Edn., (p. 484). It  is apparent from a reading of these provisions  that  in this  case there were only two kavarus and that one of  them was  santliathi kavaru and the other a nissanthathi  kavaru. The kavaru of Chandayya Shetty was a branch which was liable to  extinction as he had no female progeny.  The  appellants however sought to characterise the kavaru of the respondents as a nissanthathi kavaru because though there was a  female, namely,  the first respondent, she was said to be not  under fifty years, for if this was so, then since both the kavarus would  be nissanthathi kavarus, at a partition each  of  the two kavarus would take an absolute interest.  But when there are  two kavarus if one is sintbathi kavaru and the other  a nissanthathi kavaru, at a partition the nissantbathi  kavaru would  take only a life-interest.  The attempt to  establish that  the  respondents’  kavaru was  a  nissanthathi  kavaru having  failed,  as,  both the Courts held  that  the  first respondent was below 50 years. the learned Advocate for  the appellants  made strenuous attempts to persuade us, that  in fact the giving of a notice by the first respondent does not effect  a  partition  of  the kutumba  or  between  the  two kavarug,  and that even if this be not established, s.  7(2) of  the  Succession Act read with its  Explanation  has  the effect of enlarging a 715 life-interest into an absolute interest.  If so, the learned Advocate  submits that Chandayya Shetty had an  interest  in the properties which he  could bequeath by Will. It  appears  to  us that the provisions of  the  Madras  Act particularly s.     36(2)(h)  with its  Explanation  without doubt  indicates  the  time  when  a  share  of  kavaru   is ascertained  or  a  partition in  the  family  and  "whether property,is divided by metes and, bounds or not the share in property has to be determined as on the date when the  claim is  made.  In this case, the claim was made on  January  22, 1957  and,  therefore, the share of the parties  has  to  be determined  as  on  that  date  even  though  the   physical partition  of  the properties by metes and bounds  may  take place some time later.  The argument that though a claim may be made, no partition may. ever take place, and consequently there is no partition of the kavarus, is a speculation which cannot  affect  the principle  applicable  for  determining, whether  or not a partition takes place and if so  when.  it may  be  that  even  though a  notice  bad  been  given  for partition of the properties, the parties may later choose to

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live together and the notice withdrawn. But that is  neither her nor there.  What we have to ascertain is whether  there, has been a partition in the family or whether the family  is still undivided for the purposes of s.  7(2)     of      the Succession Act. The  learned  Advocate for the appellants has made  a  great play   on the words "undivided interest in the property"  in s.  7(2)  of the Succession Act, as in his  submission  when Chandayya  Shetty  died, he had undivided  interest  in  the kutumba   properties  and  hence  the  provisions   of   the Succession  Act applied and the appellants were entitled  to their  shares.  This contention of the appellants  no  doubt finds support from the District Judge who observed that s. 7 (2)  does  not speak about a division in  status,  but  only speaks  about  a division in property and that it  would  be wrong  to import the provisions of the Aliyasantana  Act  in interpreting  the  Hindu Succession Act  which  prevails  in spite  of any provisions under the Aliyasantana Law.   There was, according to the District Judge, nothing in s. 7(2)  of the  Act  which states that the person who  dies  after  the commencement  of the Act should not only have  an  undivided interest but he should also have been an undivided member of the kutumba, and it would be wrong to introduce words  which are  not in the Act.  According to him under s. 7(2) of  the Act  if the kutumba properties had not been divided and  the deceased  had not been allotted any portion of  the  kutumba properties, then he continued to have an undivided  interest in  the  properties at the time of his death,_  and  on  his death  his share is inherited by his legal heirs  under  the Act.   The,  learned Advocate again drew  support  from  the ,observations  made by the District Judge that even  if  the provisions   of   the  Madras  Act  could  be   taken   into consideration   in  interpreting  the  provisions   of   the Succession  Act,  then  sub-s. (3) of s.  36  could  not  be invoked to say that even where an allotment could have  been made,  but was not made, there would have been  an  allottee who  was  only entitled to life estate.   According  to  the District  Judge,  s.  36(3) of the  Madras  Act  comes  into operation only when there has been a partition and allotment of a definite share, the share to be ascertained 716 as  at the time the partition was claimed.  But, when  there has  been no partition and no allotment of a share, then  S. 36(3)  has  no  operation  and  the  person  who  formed   a nissanthathi kavaru, if he dies without getting allotted his share  in  the kutumba properties, dies  with  an  undivided interest in the kutumba properties, and, therefore, S.  7(2) of  the  Succession Act comes into play.  This view  of  the District  Judge has been held to be erroneous by-  the  High Court.  To ascertain which view is correct, we will have  to examine,  the relevant provisions of the Succession Act  and ascertain  whether  on Chandayya Shetty’s death, he  had  an undivided interest which he could dispose of by will and  if he had a life interest whether. it had been enlarged into an absolute    interest.     The   Succession    Act    defines "aliyansantana  law" by S. 3 (a) as meaning "the  system  of law  applicable  to persons who, if this Act  had  not  been passed, would have been governed by the Madras  Aliyasantana Act,  1949,  or  by, the  customary  aliyasantana  law  with respect  to the matters for which provision is made in  this Act."  Section  4(1) on which reliance has been  placed  for contending  that the Aliyasantana Law as in force  prior  to the Succession Act has no application provides thus :               "4.  (1) Save as otherwise expressly  provided               in this Act.-

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             (a)   any text rule or interpretation of Hindu               law or any custom or usage as part of that law               in  force immediately before the  commencement               of  this Act shall cease to have  effect  with               respect  to any matter for which provision  is               made in this Act;               (b)   any  other  law  in  force   immediately               before  the  commencement of  this  Act  shall               cease  to apply- to Hindus in so far as it  is               inconsistent  with  any of the  provisions  of               this Act." Sections  8and 10 of the Succession Act make provisions  for the  devolution and succession of the property of a  male  , Hindu dying intestate,S. 15 deals with the general rules  of succession in the case of female Hindus dying intestate, and s. 23 makes special provision in respect of  dwelling-houses where  a Hindu dies intestate leaving him or her  both  male and female heirs specified in class I of the Schedule. Sections 7, 17 and 30 of the Act on which reliance has  been placed will now be read insofar as they are relevant:               "7. (2) When a Hindu to whom the  aliyasantana               law  would  have applied if this Act  had  not               been  passed  dies after the  commencement  of               this  Act,  having at the time of his  or  her               death an undivided interest in the property of               a  kutumba or kavaru, as the case may be,  his               or her interest in the property shall  devolve               by  testamentary or intestate  succession,  as               the  case  may  be, under  this  Act  and  not               according to the aliyasantana law.               Explanation.-For  the  purposes of  this  sub-               section,  the  interest  of  a  Hindu  in  the               property of a kutumba or               717               kavaru shall be deemed to be the share in  the               property of the kutumba or kavaru, as the case               may  be, that would have fallen to him or  her               in a partition of that property per capita had               been made immediately before his or her  death               among  all  the  members  of  the  kutumba  or               kavaru,  as  the  case may  be,  then  living,               whether  he or she was entitled to claim  such               partition  or not under the aliyasantana  law,               and  such share shall be deemed to  have  been               allotted to him or her absolutely.’               "17.  The provisions of sections 8, 10, 15 and               23  shall have effect in relation  to  persons               who   would   have  been   governed   by   the               marumakkattayam  law  or aliyasantana  law  if               this Act had not been passed as if- ,               (i)   for sub-cluses (c) and (d) of section 8,               the following had been substituted, namely :-               "     (c)               x                    x               x               (ii)  for  clauses (a) to (e)  of  sub-section               (1)  of  section 15, the  following  had  been               substituted, namely  (a)  x    x    x    x  (b)  x    x    x    x  (c)  x    x    x    x  (d)  x    x    x    x  (e)  x    x    x    x               (iii) clause (a)     to   subsection  (2)   of               section 15 had been omitted;               (iv) section 23 had been omitted."

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             "30.   Any  Hindu may dispose of  by  Will  or               other  testamentary disposition any  property,               which  is capable of being so disposed  of  by               him, in accordance with the provisions of  the               Indian Succession Act, 1925, or any other  law               for the time being in force and applicable  to               Hindus.               Explanation.-The interest of a male Hindu in a               Mitakshara   coparcenary   property   or   the               interest  of a member of a  forward,  tavazhi,               illom,  kutumba or kavaru in the  property  of               the  tarwad,  tavazhifi  illom,  kutumba   or’               kavaru    shall,   notwithstanding    anything               contained in this Act or in any other law  for               the time being in force, be deemed to be  pro-               perty  capable of being disposed of by him  or               by  her  within  the  meaning  of  this   sub-               section." The  first  thing to be noticed is that on  the  demand  for partition  there  is  a  division  in  status,  and   though partition by metes and bounds may not have taken place, that family  can thereafter never be considered as  an  undivided family,  nor can the interest of a copareener be  considered to  be  an  undivided interest.  It  is  a  well-established principle  in, the Hindu Law that a member of a joint  Hindu family has a right to, intimate his definite and unambiguous intention to the other members of the joint family that  he will separate himself from 718 family   and  enjoy  his  share  in  severalty.    Such   an unequivocal  intention  communicated  to  the,  others  will amount to a division-in status and on ,such division he will have  a  right to get a de facto division  of  his  specific share  of the joint family property, in which till then  all of them had an undivided coparcenary interest, and in  which none  of  them  could claim that he had  any  right  to  any specific part thereof.  Once the decision to divide has been unequivocally  expressed  and clearly intimated to  his  co- sharers,  whether  or  not the other  co-sharers  agree,  an immediate severance of the joint status is effected arid his right  to  obtain  and  possess the share  to  which  be  is admittedly   entitled  be-Comes  specified:  Girja  Bai   v. Sadayhiv Dhundiraj & Others.(1) Lord Westbury in Appovier v. Ramasubbier,(2) had earlier observed               "If  there  be  a  conversion  of the  joint               tenancy of an undivided family into a  tenancy               in  common  of the members of  that  undivided               family, the undivided family becomes a divided               family with reference to, the property that is               the  subject of that agreement, and that is  a               separation in interest and in right,  although               not immediately followed by a de facto  actual               division of the subject-matter.  This  may,-at               any time, be claimed by virtue of the separate               right." This principle has been incorporated in s. 36(2) (h) of  the Madras .Act which, as already stated, specifies the point of time for ascertaining the share when a division in status is effected.   The  term  ’partition’ in sub-s. (3)  of  s.  36 therefore  must be given the same meaning ,as in s.  36  (2) (h) of the Madras Act. In Mahalinga Shetty v. Jalaia Shedthi and others(3)  Govinda Menon,  J.,  as he then was, speaking for the Bench  of  the Madras  High  Court  came  to  a  similar  conclusion  on  a consideration of ss. 36(2) (h) and 36(3) of the Madras  Act.

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It  was held in that case +.hat the phrase ’at the  time  of partition  should  be understood as ’at the  time  when  the parties  effect a severance in status’ the  partition  being only a disruption of status.  It does not mean the point  of time  when  the actual division by metes  and  bounds  takes place,  which might take a long time after the  division  in status  takes place, either by the institution of a suit  or by  a notice of ($aim for ’partition’.  It was pointed  ,out in  that  case that clause (h) in sub-s. (2) of  S.  36  was obviously   inserted  as  a  result  of  the   decision   in Karthiyayini Kunchi v. Minakshi Ammal(4) in which a Bench of that Court held that the theory of division in    status  by a  unilateral  declaration  of intention  is  applicable  to persons   following  the  Marumakkattayam  Law  just  as  it applies to Mitakshara    joint   family.   Burn,   J.,   who delivered  the  judgment stated that the  principle  is  not restricted to the case of joint Hindu families following the Mtakshara or  any  other  system of  law  but  is  one  of universal  application.   It is to remove any  doubts  about this that clause (h) has been inserted in S. 36(2).  In  our view also, the word partition’ in sub-s. (3) of S. 36 should be given the same meaning, as.in s. 36(2) (h) of the  Madras Act, if so on a demand for partition (1)  L. R. 43 I. A. 151. (2)  (1866) It M. T. A. 75. (3)  (1956) 2 M. L. J. 446. (4)  (1935) 70 M. L. J. 114. 719 a  severance  of status takes place and the share  to  which each   is   entitled  in  the,   undivided   properties   is ascertained. Even in the case of an aliyasantana kutumba this Court  had held  per Hegde and Grover, JJ. in Padmaraja and  others  v. Dhanavanthi  and  others(1)  that if the  jointness  of  the kutumba had been disrupted, there is no question of planning any partition as there is no kutumba in existence as in  the instant  case before us.  Similarly, on the same  parity  of reasoning,  when there are two kavarus, a demand for  parti- tion would disrupt them and Chandayya Shetty could no longer claim  that he had an undivided interest within the  meaning of s. 7(2) of the Succession Act, and if he has no undivided interest  in the property, his interest cannot  be  enlarged into  an  absolute  estate,  nor can  his  interest  in  the property  devolve, upon his heirs by  intestate  succession. What  s.  7 is dealing with is a situation similar  to  that dealt  with  in s. 6, namely, that when a  member  of  joint Hindu  family  dies  undivided,  instead  of  his  undivided interest  devolving upon the other members of the family  by survivorship,  it  is  provided  that on  the  death  of  an undivided member of the joint Hindu family his share in  the joint  family  properties shall devolve on his heirs  as  if there had been partition in the family.  The Explanation  to s. 7(2) makes this position clear.  Prior to the  Succession Act  neither under the customary law, nor under  the  Madras Act,  nor under the Indian Succession Act the interest of  a coparcener  in  an  aliyasantana  kutumba  could  have  been disposed  of by testamentary disposition.  But s. 30 of  the Succession  Act  made  a  definite change  in  the  law,  by enabling a member of an undivided aliyasantana kutumba or of a kavaru to dispose of his interest in the kutumba or kavaru properties by a will. The learned Advocate for the appellants submits. that merely because a person has asked for a partition and that also not by  Chandayya Shetty but by the first respondent, it  should not deprive him of his right to dispose of that property  by

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a  will,  or  deprive  his legal  heirs  of  inheriting  his property by intestate succession.  This argument ignores the basic  concepts  of the aliyasantano law.   As  pointed  out earlier there is neither a kutumba, nor can Chandayya Shetty be a kavaru.  The two kavarus after the division in  status, become  only  one  kavaru,  namely  that  of  respondent  1. Chandayya Shetty will not be ’a kavaru within the meaning of s. 3(b) of the Madras Act, because under s. 3(b) (ii)  there being  no  female line, it is only the mother  of  Chandayya Shetty  who- can be a kavaru but not Chandayya  Shetty.   In fact a male can never be a kavaru either under the customary law or under the Madras Act.  When the Succession Act refers to  kavaru in relation to its undivided interest, it is  the kavaru  under the custom or the Madras Act and not a  deemed kavaru  for the purposes of partition.  If Chandayya  Shetty is not a kavaru, there is no property of a kavaru which  can be  disposed  of under s. 30 of the  Succession  Act.   Even under  the  Explanation to that section, the  life  interest which  Chandayya  Shetty had no severance of status  is  not property capable of being disposed of by a will.  As we said he is no longer a kavaru and had, therefore, no interest  in the property of the, kavaru. (1) [1972] 2 S. C. C. 100, 104. 92SupC/74 720 A  Full Bench of the Mysore High Court in Sundara Adapa  and others v. Girija and Others(1) has given a similar answer on facts  analogous to the one raised before us.  In that  case the  first  defendant  who was  a  nissanthathi  kavaru  had claimed  in  his written statement a partition  of  his  own share  and  was granted 751360th share  in  the  preliminary decree.  By a will he left to his wife and children all  his rights in the properties due to him on account of his share. There  was  also  likewise a  santhathi  kavaru,  Under  the Aliyasantana  Act on the cessation of the first  defendant’s life  interest the property would devolve upon  the  nearest santhathi kavaru according to sub-s. (5) of s.    36. But it was  contended as is contended in this case. that by  virtue of   Explanation  to sub s. (1) of s. 30 of  the  Succession Act, the rights of  the  first  defendant  in  his  75/360th share of his properties became capable of being disposed  of by wi ll and, therefore, the children of the first defendant could be entitled to the share in accordance with the  terms thereof.  Hegde, J., as he then was, delivering the judgment of that Court observed at pp. 238-239 ;               "The  object  of section 30  is  clear.   That               section  neither  directly  nor  by  necessary               implication  deals  with  the  devolution   of               divided  interest.  As mentioned earlier,  its               purpose is limited.  The language employed  is               plain    and   therefore   no   question    of               interpretation  arises.  It is not correct  to               contend,  as  done by Sri Bhat,  that  if  the               Explanation  to s. 30(1) is understood in  the               manner the respondents want us to  understand,               a coparcener who dies undivided would leave  a               more valuable estate to his heirs than one who               dies divided.  In most cases, the share  taken               by a nissanthathi kavaru though limited to the               duration  of the life of the kavaru  would  be               larger  in extent than one as  provided  under               sec.  7  (2) of the "Act".  In the case  of  a               share  under the Aliyasanthana Act the  kavaru               takes  his  share  on the  basis  of  half-per               capita, half per stirpes.  Under sec. 7(2) the

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             share  is  determined  on  per  capita  basis.               Quite  clearly  the  object  of  bounty  under               section  7 (2) read with sec. 30 is the  donee               under the will of a deceased coparcener.   The               fact  that  divided members also  do  not  get               corresponding  benefits under the "Act" is  no               relevant   test.   If  Parliament  wanted   to               enlarge  the interest of divided male  members               nothing would have been easier than to enact a               provision  on the lines of sec. 14(1)  of  the               "Act",  provided Parliament had competence  to               do  so.  Further, the Explanation  to  section               30(1) speaks of "The interest of a Male Hindu"                             in  his "kutumba" or "kavaru"  propert y.   The               definite article ’the’ evidently refers to the               interest specified or quantified in some other               provision of the "Act"; it could not refer  to               the unascertained interest of a coparcener  in               a kutumba.  Obviously "the interest"  referred               to is the interest quantified under section  7               of  the "Act" to which reference will be  made               in greater detail at a later stage.               (1) T. L. R. [1962] Mysore 225.               721               Quite  clearly, on the date of his  death  the               first  defendant  was  not  a  member  of  his               kutumba or kavaru.  As noticed earlier, he was               already divided from the family.  Further, his               will  did  not relate to his interest  in  the               kutumba   or   kavaru  property.    The   will               purported to bequeath the property obtained by               him  as  his  share  as  per  the  preliminary               decree.    Therefore,  the   contention   that               interest obtained by the first defendant under               the  preliminary, decree stood enlarged  as  a               result  of  section 30(1) of  the  "Act"  must               fail." The  above  statement  of the law which  meets  the  several contentions  raised before us is in consonance with our  own reading  of  the  provision  of  the  Madras  Act  and   the Succession  Act.  The learned Advocate for  the  appellants, however,  has tried to distinguish this case on  the  ground that  the  effect  of s. 17 of the Succession  Act  was  not considered in that case.  In our view, that question was not relevant either in that case or in this case, because s.  17 of  the Succession Act applies the provisions of ss. 8,  10, 15  and 23 which deal with intestacy, to Persons  who  would have   been   governed  by  the   Marumakkattayam   Law   or Aliyasantana  Law if the Succession Act had not been  passed with the modifications provided therein. in this case  also, as  already stated, there is no kavaru of  Chandayya  Shetty and  on  separation he Succession Act  while  enlarging  the right of an absolute interest did not specifically the right of  the  former.  In the absence had only  a  life  interest which is not a heritable property and cannot be disposed  of by  a will, nor could it devolve as on intestacy.  Even  the argument that under s. 7(2) Chandayya Shett’s life  interest has  been  enlarged  into an absolute  interest  is  equally untenable,  because  a male with a life interest  under  the Aliyasantana  Law  being in the same position  as  a  female limited  owner under the Hindu Law, the  latter under s.  14 into  provide  for  the  enlarging  of   any  such  specific provision we can only hold that Chandayya Shetty’s  interest enured till his life time only.

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In  the result the judgment of the High Court is  sustained, and the appeal dismissed but without,costs. 3.B.W.                       Appeal dismissed. 722